Skattekonsekvenser av och vid omvända fusioner

by Johnsson, Erik; Särnqvist, Daniel; Odehammar, Victor

Abstract (Summary)

A downstream merger is defined as a transaction where a parent company is merged into its subsidiary. The interior assets held by the parent company are transferred to the subsidiary in the merger, and the shares the parent company holds in the subsidiary is transferred to its owners as merger compensation. A downstream merger does not differ per definition from a merger where a subsidiary is merged into its parent company. Guidance and doctrine concerning this is scanty, therefore a speculation has arisen, whether the downstream merger complies with the prohibition to borrow money of a company to acquire it and the prohibition for a company to acquire its own shares, set up in the Swedish company act (ABL). To scrutinize the problems that can arise in such a merger, we need to study the tax- and accounting-topics that are concerned.It is therefore inherent to study if any taxation can arise for a t ransferringcompany, or its owners, when it gives a merger compensation consisting of the shares from the parent company. The taxation is based on the financial statements and a true and fair view. Thereby we need to show which accounting method to use. Our investigation shows that the downstream merger is in accordance with Swedish law, and that the parent company’s shares are not taken over by the subsidiary, though some problems arise since the rules of law are not clear. This means that interpretations of the company act generally has to be made to get a result. An important interpretation is that the expression “all their assets”, does not include shares in the overtaking company.Despite the fact that there are many active standard-setting powers, none of these has set any standard concerning downstream mergers. Also in this situation we have to interpret our sources to get the best procedure. We advocate a method where the values shown in the accounts of the group are used. With this the parent company’s interior assets is accounted for in the subsidiary’s balance sheet and income statement. This gives a balance sheet that is as neutral as possible. This method of accounting is also supported by IFRS3.